Eichen v. George B. Jr. Realty Inc.

154 A.D.2d 428, 547 N.Y.S.2d 236, 1989 N.Y. App. Div. LEXIS 12504

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 10, 1989
• Status: Published

Opinion

— In an action to foreclose a mortgage, the plaintiffs appeal from an order of the Supreme Court, Queens County (Durante, J.), dated April 28, 1988, which granted the motion of Junction Properties, Inc., to vacate a judgment of foreclosure and sale entered March 13, 1987, and the ensuing sale.

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court did not improvidently exercise its discretion in vacating the judgment of foreclosure and sale and the ensuing sale (CPLR 5015 [a] [1], [3]; Perellie v Crimson’s Rest., 108 AD2d 903; Shaw v Shaw, 97 AD2d 403). A liberal policy has been adopted with respect to opening default judgments in furtherance of justice to permit a trial on the merits wherever possible (DFI Communications v Golden Penn Theatre Ticket Serv., 87 AD2d 778; Cappel v RKO Stanley Warner Theaters, 61 AD2d 936). In light of the respondent’s meritorious defense and the parties’ apparent misunderstanding concerning the priority of their liens, the Supreme Court properly exercised its discretion in vacating the judgment and ensuing sale (see, Passalacqua v Banat, 103 AD2d 769). Lawrence, J. P., Rubin, Balletta and Rosenblatt, JJ., concur.